Constitutional Administrative EU Flashcards
1
Q
What is “Uncodified constitution?”
A
No single definitive source
2
Q
What are the main constitutional functions?
A
- establish and identify the key institutions (L\G\J)
- Outline their powers
- Regulate relations between state/institutions/individuals
3
Q
Sources of UK constitution
A
- Act of Parliament
- Common law
- Constitutional convention
- ECHR via HRA 1998
4
Q
Principle of “Rule of law” means
A
- Law applied fairly
- Government acts according to the law
- Law has no retrospective effect
- No punishment w/o breach of the law
- No person above the law
- Law is accessible, clear and predictable
5
Q
What is the highest form of law in UK?
A
Act of Parliament
6
Q
Declaration of incompatibility can be applied to
A
Act of Parliament that allegedly incompatible with HRA 1998
7
Q
Royal prerogative is
A
part of Common law, collection of powers belonging to the Crown (government, Executive)
8
Q
Examples of constitutional conventions
A
- Circumstances when ministers resign due to personal conduct
- UK Parliament does not legislate on devolved matters (Scottish Welsh nIreland)
- Monarch always acts on advice of PMinister
- Government ministers will have seat in both Houses
9
Q
How many jurisdiction in UK?
A
3 - Wales, Scotland, nIreland
10
Q
Main constitutional principles
A
- Separation of powers
- Rule of law
- Parliamentary sovereignty
11
Q
Basic elements of Principle Parliamentary sovereignty
A
- P makes/unmakes any laws
- No one can set aside act of P
- No parliament binds successors
12
Q
What is Enrolled Bill rule?
A
Courts do not question validity of the law
13
Q
What is Parliamentary privilege?
A
No responsibility for anything said in the Parliament
14
Q
Parliament main functions
A
- pass the law
- keep government accountable
15
Q
House of commons has…members
A
650
16
Q
Speaker`s of House of commons main function
A
maintain the order during debates
17
Q
Terms for the Parliament is…years
A
5
18
Q
Can Monarch dissolve Parliament before end of 5 years term?
A
yes
19
Q
Who cannot be MP
A
- under 18
- non Commonwealth (except Ireland)
- Member of house of Lords
20
Q
What is MP recall procedure
A
Conditions:
- if convicted an offence
- Suspended by HC for 10 days for misconduct
- false or misleading information related to expenses
Recall petition + 10% of electorate sign petition - recalled to constituency
21
Q
King`s speech is
A
Speech in the beginning of each session of Parliament, outlining plans of Government
22
Q
What is the usual sequence to pass a Bill
A
1st reading
2nd reading
Committee stage
Report stage
3rd reading
Consideration of amendments (ping-pong)
Royal assent
23
Q
What are two forms of Committee exist?
A
-Public bill committee
- Whole house committee
24
Q
what is Whole house`s committee role?
A
To consider controversial, urgent or 1st class constitutional importance bills
25
What is a difference between 1 2 3 readings?
1 - just introduction, 2 - first debates, 3 review before next house 1st reading
26
What is Salisbury convention?
House of lords will grant a second reading if the Bill is in course of elections
27
What is suspensory veto?
House of lords may block peace of legislation, but this veto can be avoided in next year session
28
What is commencement order?
Piece of Bill, secondary legislation, indicating wen it comes into force
29
What is secondary legislation?
Legislation made by Government. Also known as delegated, subordinate, regulations, statutory instruments
30
What are procedures to enact secondary legislation?
Negative resolution procedure
Affirmative resolution procedure
31
How many days draft should lay before both Houses for Negative resolution?
40
32
What is Affirmative resolution?
To be enacted, draft should be expressly voted by both houses.
33
What is Delegated legislation committee
Chamber in House o commons where secondary legislation can be debated
34
What is Henry VIII Powers
Power of government to amend primary legislation (minor amendments.
35
When secondary legislation can be struck down by the court?
When it goes beyond the powers granted to the government
36
Sub Judicie rule means
During debates in either houses it is forbidden to refer to ongoing case
37
Term Crown includes following
Monarch
Prime minister
ministers
government departments
civil servants
38
Who is Head of State in UK?
Monarch
39
Monarch is head of:
State (14 countries)
Armed forces
Church
Defender of Faith
40
Principles of Royal Prerogative
- No new prerogative can be created
- when overlap with Statute - statute prevails
- prerogative cannot be used to Thwart intention of Parliament
- cannot be used to change the law
- statutes are not binding Crown unless expressly mentioned
41
Bill of Rights 1689 states that
Parliament is sovereign, Crown is not
42
Three major groups of prerogative powers
Ministerial
personal
Archaic (dolphins/swans)
43
Ministerial prerogative is to:
- Acquire and cede territory
- Conducting diplomacy
- appointment of High Commissioners
- Use of Armed forces, declaration of war
- PM appoint and remove ministers
44
High Commissioner is
representative from countries of Commonwealth
45
Personal prerogative is
- To appoint PM
- To dismiss government
- to prorogue Parliament
- to dissolve Parliament
- Ascent
46
legislative prerogative power is
- to pass Orders in Council
- granting Ascent
47
Judicial prerogative power is
- granting pardon (criminal)
- Judicial committee of Privy Council
48
Judicial committee of Privy Council is..
appeal body to hear appeals from Commonwealth. Formally approved at Privy council meeting
49
Examples of how Royal prerogative is regulated
- Ratification of international treaties (Statute regulates)
- Cardinal convention - monarch acts on PM advise (Convention regulation)
- deployment of Armed forces (asks support of House of commons) (Convention regulation)
- Monarch appoints PM (Convention regulation)
50
How International treaty becomes binding?
To be ratified by Parliament;
- to be laid before Parliament 21 days
- 21 days passed, no vote against - G can ratify
- if vote against - explain and another 21 days (Lords excluded)
- exceptional cases - bypass Parliament
51
How many days Treaty to be lad before Parliament for ratification
21
52
What is Cardinal convention
Monarch always acts on PM advice, even if disagrees
53
Hung Parliament means
after election does not result in majority of one party
54
Secretaries of State are
Most senior ministers
55
Prime minister`s main responsibilities
- Organization of Government and Civil service
- Constitutional advisor to Monarch, responsible for relation with devolved governments
- Security and Intelligence matters
- Armed forced
- International relations
56
Matters expected to go to Cabinet
- Decision on military action
- determining government`s legislative agenda
- issues of constitutional nature
- significant domestic policy matters
- significant European or international affairs
- emergencies, terrorism
57
Carltona doctrine means
If Parliament grants power to minister, it is clear that power will be exercised by civils
58
Key elements of G collective responsibility
- confidentiality
- unanimity
59
Minister`s individual responsibility in substance is:
- Not to mislead Parliament (either correct or, if knowingly - resign)
- Responsibility and accountability to Parliament for department
- Private conduct (Ministerial Code)
60
Distinction between being accountable and being responsible
Operational failure - accountable - fix
Policy failure (general failure to deliver policy) - responsible - resignation
61
What are the 3 aspects (levels) of ministers` accountability
- Collective responsibility
- Private responsibility
- Accountability to Parliament
62
Ministers` accountability to Parliament results in:
- PM question time
- Ministerial questions
- Opposition business
- Urgent questions
- select Committees
63
Which questions cannot be asked during ministerial questions?
- about Monarch
- about local authorities
- affairs of other countries
- devolved matters
- case in court
64
What devolved institutions exist?
- Scottish Parliament and Government
- Welsh Parliament and Government
- nIreland Assembly and Executive
65
What is required to cancel devolved institutions?
Scotish and Welsh - Parliament + referendum
66
Sewel convention is
Parliament normally asks Legislative consent motion before legislating on devolved matters
67
Devolved legislation can be stroke down if
- made outside devolved powers
- made contrary to ECHR
68
Who refers bill to Supreme court for nIreland
- Advocate general
- Attorney general
69
Who refers bill to Supreme court for Scotland
- Advocate general
- Attorney general
- Lord Advocate
70
Who refers bill to Supreme court for Wales
- Attorney general
- Counsel general
71
Judicial review is
Court can review and scrutinize actions of executive
72
What are main 3 questions court should answer before/during the case
1. If application meets requirement
2. What are the grounds
3. Appropriate remedy
73
Requirements for judicial review:
1. Claim against Public body
2. Correct procedure during application was used
3. Are there grounds for refusal based on NO substantial change of outcome
4. Time limits for application observed
5. Is issue reviewable (not hypothetic)
6. Issue is not on factual merits
7. Claimant has standing
8. Court is last resort
74
Name correct procedures of judicial review
- Pre-action protocol
- Permission stage
75
What is pre-action protocol?
In judicial review claimant has to send the letter to defendant, and defendant responds in 14days
76
What are the time limits to submit for judicial review
Promptly!
3 months - general
6 weeks - planning decision
77
What means `having standing` in judicial review
Claimant has sufficient interest -is directly impacted
78
Types of grounds for judicial review
- Illegality
- procedural impropriety
- unreasonableness (red hair)
- breach of legitimate expectations
79
Illegality as ground for judicial review includes:
- Error of law
- Failure on Specific legal duty (i.a. Duty of Equality)
- Unlawful delegation of powers
- Irrelevant considerations
- Ultra vires (out of power)
80
Ouster clauses means
clauses in statutes stating that decision of executive cannot be challenged. Lawful - cannot
81
Grounds (violations) for procedural impropriety
- Mandatory/Directory requirements (must/shall)
- Right to be heard (when removing right)
- Rule against bias
- Duty to consult
- Duty to give reasons
82
What is automatic disqualification Rule?
When state body`s representative had financial interest (bias), or non-financial but closely attached to the case
83
Types of duties to consult
- statutory
- promised
- established practice
- failure will lead to unfairness
84
Legitimate expectation is
Expectation that state body will act as it promised or it always acted
85
Types of remedies available:
- Quashing order
- Mandatory order
- Prohibiting order
- Injunction
- Declaration
86
3 Types of right under HRA 1998
- Absolute
- limited
- qualified
87
Name absolute rights under HRA 1998
- To life
- no Torture
- no Slavery
- no retrospective in Criminal
88
Name limited rights under HRA 1998
- Liberty and security
- Fair trial
89
Name qualified rights under HRA 1998
- respect of private life
- thought and religion
- Expression
- Assembly
- Marry
- no discrimination
- property
- education
- elections
- no death penalty
90
Cases when limited rights can be limited:
- detention convicted in criminal
- arrest/detention those failed with court order
- arrest/detention reasonably suspected crime / prevent
- prevent spreading virus
91
Test to define if qualified right can be limited:
1. Aim to limit is important
2. Measures are designed to meet aim
3. Interference is no more necessary to accomplish aim
4. Measure is reasonable and balanced (not excessive)
92
Explain concept of `Margin of appreciation`
It is a Limit of country`s discretion. If there is common approach among states - signatories of ECHR on how to act in issue, ECtHR will apply narrow margin.
93
What means Living instrument principle of ECHR
- ECtHR is free to depart of its decisions
- ECtHR can choose to follow the approach of any state
94
Which rights (HRA) can be derogated (ignored) and when
only Limited and qualified, in case of war
95
What is the `mirror principle ` in context of HRA 1998
UK courts must
- take into account any judgement of ECtHR,
- take the approach that reflects the decision of ECtHR
- interpret legislation as interpreted by ECtHR
96
If Act is non-compliant with ECtHR, how to fix?
To correct via standard procedure. Or via secondary legislation (remedial order, becomes law if approved both after 60 days),
If urgent - immediately comes into effect but lose power if not approved 120 days
97
Which public authority cannot be sued under HRA 1998
- Parliament (both Houses)
- any authority if it could not act any differently
98
What is `Victim test`?
It means that claim under HRA 1998 can be brought only by directly affected
99
What is the specifics of the claim `Freedom from discrimination` under HRA 1998?
Cannot be sole ground, only connected with other
100
What is limitation period to submit claim under HRA 1998
1 year
101
Under which act one can bring claim against discriminations against non-public authority
Equality act 2010
102
Difference between HRA and Equality act?
Discriminations can be freestanding ground
103
What is "Kings peace"
Duty of police officers prevent breaches of peace
104
What "breach of piece" means
people should do their business in ordinary way without interference. Public and private place
105
3 situations when breach of piece occurs:
- person is genuinely in fear of harm
- Harm has been done
- Harm is likely to be done
106
Which 2 steps can be done by police officer in relation to breach of piece
- Any steps to terminate
- any steps to prevent
107
What "Harm likely to be done" means
Harm cannot be avoided (imminent)
108
How many days notice required for Public procession
6
109
What should be mentioned in the notice for Public procession
- date
- time
- route
- name of person
110
When conditions on procession can be imposed?
- public disorder
- damage of property
- disruption of life
- generate noise
111
Serious disruption of life to impose condition on procession means
- delivery delay of sensitive products
- disruption of access to essential products:
- money food water
- communication
- education
- health
112
Maximum term of ban on procession is
3 months
113
Ban for procession should be applied to
- local council
- Home secretary (London, Greater london)
114
How many people required for Public assembly
2
115
Conditions to consider Trespassory Assembly
- 20+ people
- Land no/limited access to public
- no permission of occupier
- serious disruption
116
Police can stop anyone they believe will join banned..
Trespassory assembly
117
4 freedoms of EU are free movement of
People
Capital
Goods
Services
118
What is the only source of EU law?
Treaties
119
EU secondary legislation is
- Regulations
- Directives
120
What had supremacy (before Brexit) UK or EU law
EU law
121
Two requirements for EU law to have direct effect
- clear and precise
- unconditional
122
Validity of legislation passed before or after 1972 (UK joined EU)
Valid to extent it complied with EU law
123
UK joined EU
UK left EU
1972
2020 (31 Jan)
124
Transition period in Brexit was by
31 Dec 2020
125
Types and description of Retained EU law
1. EU-derived domestic (all UK secondary/primary to implement EU Directives)
2. Direct EU legislation (EU Regulations)
3. Directly effective (Treaty provisions)
126
What has supremacy (in case of conflict): Retained EU law or UK law?
If UK law was passed before the end of Transition, EU law prevails
127
What has supremacy (in case of conflict): Withdrawal agreement or UK law?
If any provision of UK law is inconsistent with Withdrawal agreement, provision will be disapplied
128
How UK courts treat CJEU decisions made before/after Transition period
Before: it is Retained case law
After: not bound
129
Retained EU case law is binding to
all court, save for Supreme Court and Court of Appeal
130
Supreme Court and Court of appeal can depart from retained EU case law
under same condition they depart from own decisions - when it appears right to do so.
131
Who has power to correct deficiencies in Retained EU law
Government, via secondary legislation
132
What are the limitation of power to correct deficiencies
- increase taxes
- retrospective provision
- create criminal offence
- made after 2022
